Citation Nr: 1716750
Decision Date: 05/17/17 Archive Date: 05/22/17
DOCKET NO. 13-03 425 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for a right knee disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The Veteran served on active duty from October 1992 to September 1997 and from July 1998 to June 2002.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.
A videoconference hearing was held on March 5, 2014, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.CA. § 7107 (c) (West 2014) and who is rendering the determination in this case. A transcript of the hearing is of record.
In March 2015 the Board remanded the case for further development.
FINDING OF FACT
The Veteran's right knee disability did not have its onset during service, and is not the result of an injury, disease, or event in service; and arthritis of the right knee did not manifest itself to a compensable degree within one year of service.
CONCLUSION OF LAW
The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Notice and Assistance
VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). In the instant case, VA provided adequate notice in a standard letter sent to the Veteran in October 2011.
VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and private treatment records are associated with the claims file.
VA provided a relevant examination in July 2015. The examination/opinion of record provides an adequate basis for the Board to decide the claim. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.
II. Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).
Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a).
The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340.
If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b).
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54.
The Veteran contends that he is entitled to service connection for a right knee disability because it was incurred in service. Specifically, at the Board hearing he testified that he injured his right knee when it was hit by a tire that came off a vehicle in 1999. He stated that he did not seek immediate treatment for his knee during service because it did not bother him that much until near the time when he was about to be discharged. He also testified that when it did start bothering him, he went to the clinic and got Motrin two times. He further indicated that after he was discharged, he first sought medical attention for his knee about a year after he got out of service.
The service treatment records do not reflect any complaints, findings or diagnosis of any knee problems.
A September 2012 private treatment record from R.G., M.D., noted "right knee pain, bothering for several weeks, patient having some instability to the knee. Patient received a steroid injection this past weekend in the knee with some results." An August 2013 private medical record/patient questionnaire sheet reflects that the Veteran reported that his right knee problem began on May 15, 2012. He also reported that he fell on his knee while in service.
A June 2013 record from Dr. G. noted that the Veteran's right knee pain was a "long-standing problem." An April 2014 treatment record from another physician in the same practice noted a diagnosis of degenerative arthritis of the knee, and a long history of knee pains bilaterally, more in the right. An August 2014 private treatment record from this physician listed a diagnosis of degenerative arthritis of the knee. The treating physician noted the Veteran's reported history as "two year history of bilateral knee pain. Years ago thinks he hurt them getting up and down off military vehicles. Has had arthroscopic surgery on right knee." A May 2015 private treatment record noted a diagnosis of patellar tendonitis of the right knee, with a two day history of knee pain.
The Veteran submitted a March 2014 letter from his private physician, Dr. C.M., which states, that the Veteran "states that he injured [his right knee] while in the military back in May 2012." The letter further indicates that the Veteran reported that he fell on his knee in the military. Dr. C.M. opined that the Veteran's right knee chondromalacia patella is consistent with the Veteran's self-reported history of falling and injuring his knee in service.
A July 2015 VA examination report diagnosed chondromalacia patella status post chondroplasty and trimming of plica on 8/23/2013. The Veteran reported that he had injured his right knee while in service. He stated that he worked as a motor transport and handled a lot of tire changing. In approximately 1999-2000 he recalled having a right knee injury by getting hit by a tire that fell off. He reported that he did not seek medical attention at that time. The Veteran reported that he continued to have knee pain following the injury, and that once he was out of service he sought treatment by his primary care physician.
"Personal medical records show office treatment on 9/5/2012, 6/24/2013, 4/21/2014, 8/25/2014,and 5/21/2015 for knee condition. He reported multiple cortisone injections but without significant relief of right knee pain. Dr. [G] referred Veteran to Dr. [C.M.], orthopedic. In 2012 he had surgery to his right knee which included right knee scope with chondroplasty and trimming of plica. After surgery, Veteran continues to have right knee pain with weightbearing." X-rays showed no joint space narrowing. There was no bone destruction and no periosteal reaction. There was no periarticular soft tissue calcification, and no appreciable suprapatellar joint effusion was seen.
The VA examiner opined that the Veteran's current right knee disability was "less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." The examiner noted that:
There is lack of medical evidence to show the right knee injury that occurred while in service in 1999 is related to his knee condition which was diagnosed in 2012. There are no medical records to show that he [sought] treatment for his right knee condition from date of separation on 6/30/2002 to 9/5/2012; therefore, lack of records to show this was a chronic or ongoing right knee problem. Veteran personal records from his primary care physician when he [sought] medical attention regarding his right knee was dated 9/5/2012. There is also inconsistency in the history of right knee injury. Veteran reports right knee injury to this examiner occurred approximately 1999-2000, while he reported knee injury to Dr.[C.M.], his orthopedic, was in May 2012. There is a statement from Dr. [C.M.] in VBMS supporting his current knee condition of chondromalacia patella was related to his injury while in the military; however, Dr. [C.M.] clearly stated that "It is strongly emphasized that a physician's determination as to the cause of a patient's physical condition almost universally comes from the patient, i.e. the history. The patient's history states that he fell on it in the military." Dr. [C.M.] has no access to Veteran's [service treatment records]; therefore, cannot know of any condition or injuries while Veteran was in the Military.
The Board finds that Dr. C.M.'s statement relating the Veteran's current right knee disability to an inservice injury less than persuasive in light of the overall record. There is no indication that the physician reviewed the service treatment records; he specifically notes that his opinion is based on the Veteran's reported history of a fall in service. The opinion does not demonstrate any familiarity with the Veteran's various and inconsistent reports regarding the nature of an inservice injury or of the onset of knee pain. Dr. C.M.'s opinion is entirely conclusory and offers no medical guidance as to the basis of the opinion. See Nieves-Rodriguez v. Peake,22 Vet. App. 295 (2008).
The Board finds the July 2015 VA examiner's opinion more probative as it includes a discussion of the actual service treatment records, the postservice medical record, and the Veteran's various statements over the years regarding the onset of his knee pain. It provides a rationale for the conclusion that the current right knee findings are unrelated to an inservice injury. It also includes a discussion of the private opinion of Dr. C.M. The VA examiner notes that the earliest treatment for knee complaints of record is in 2012, a decade after separation from service.
While the Veteran is competent to report that he injured his right knee during service and experienced knee pain since service, the Board finds his current recollections of continuous knee problems since service less than probative given his varying reports of the nature of the inservice injury as well as the onset of right knee problems. Specifically, the Veteran has variously referred to an incident during service when his right knee was struck by a falling tire, a fall on the knee in service, and injury to the knees from getting up and down off military vehicles. He has also referred to an injury in 2012 which was a decade after his separation from service. The inconsistency in the history reported by the Veteran calls into question the accuracy of the Veteran's report of right knee injury in service and right knee pain ongoing since service. There is no other competent and probative medical or lay evidence that links the current right knee pathology to any aspect of military service.
The record includes a diagnosis of degenerative arthritis of the right knee (although there is no X-ray documentation of such). Arthritis is a presumptively service-connectable chronic disease, however the evidence does not show that any arthritis of the right knee was manifest to a compensable degree within one year of service discharge. Finally, given that arthritis of the right knee was not noted in service, service connection is not warranted based on a continuity of symptomatology.
The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved; and service connection for a right knee disability is not warranted. 38 U.S.C.A § 5107 (b); 38 C.F.R. § 3.102.
ORDER
Service connection for a right knee disability is denied.
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs